Testing Discretionary Review at the Florida Supreme Court: An Emerging Trend at the Florida Department of Revenue?

In recent months, the Florida Department of Revenue has sought discretionary review in the Florida Supreme Court in two cases arising from adverse decisions in the First District Court of Appeal: Florida Department of Revenue v. ADN Global, LLC and State of Florida, Department of Revenue v. SEI Fuel Services, Inc.

Two cases are not enough to establish a definitive trend. But they do provide a useful window into how the Department is approaching discretionary review—and how those efforts are being challenged by taxpayers and, at least in one instance, declined by the Court.

When both sides of these cases are considered, a clearer picture emerges. The question is not simply whether the Department is seeking review more aggressively. The more meaningful question is whether the issues being presented truly rise to the level of “express and direct conflict,” or whether they are better understood as fact-specific disputes that do not warrant Supreme Court intervention.

The Narrow Gate of Discretionary Review

Discretionary review in Florida is intentionally limited. The Florida Supreme Court does not exist to correct legal error in individual cases. Instead, it serves to resolve conflicts between appellate decisions that create inconsistency in the law.

That distinction is critical. A decision can be important, debatable, or even controversial without creating the type of conflict required for review. For jurisdiction to exist, the conflict must be clear, direct, and apparent from the decision itself—not inferred from broader implications or reconstructed from the record.

Both ADN Global and SEI Fuel Services turn on that distinction.

ADN Global: A Due Process Case Framed as a Jurisdictional Conflict

In ADN Global, the Department presented the case as a fundamental conflict over the nature of jurisdictional deadlines in Florida tax law. Its position was that the First District improperly introduced concepts of waiver into a statutory framework that treats deadlines for challenging tax assessments as strictly jurisdictional and non-waivable.

Viewed in isolation, that argument has force. Florida law has long treated certain tax deadlines as absolute, and any suggestion that those deadlines can be softened raises legitimate concerns about finality and uniformity.

But the taxpayer’s response reframed the case in a way that ultimately proved decisive.

Rather than a dispute over jurisdictional deadlines, ADN Global was, at its core, a due process case. The taxpayer argued that it never received a meaningful opportunity—a “point of entry”—to challenge the Department’s notice of decision. The issue, therefore, was not whether the taxpayer missed a deadline, but whether the deadline was ever properly triggered in the first place.

That distinction changes the analysis entirely.

If a taxpayer is denied proper notice, the question is not waiver or timeliness—it is whether due process has been satisfied. And where there is a factual dispute about notice, the appropriate remedy is not dismissal, but an evidentiary hearing.

The First District’s decision reflects that narrower view. It did not announce a new rule about jurisdictional deadlines. It did not hold that such deadlines can be waived. Instead, it recognized that where a taxpayer raises a legitimate question about whether it was afforded a meaningful opportunity to act, that question must be resolved before the consequences of inaction can attach.

The Florida Supreme Court declined jurisdiction.

That outcome is telling. It suggests that the Court did not view the case as presenting a true conflict in the law, but rather as a fact-driven dispute about notice and due process. In that light, the Department’s broader framing—while understandable from a policy perspective—appears to have extended beyond what the decision actually held.

SEI Fuel Services: A More Complex—but Still Narrow—Dispute

The Department’s petition in SEI Fuel Services presents a more intricate argument.

There, the dispute centers on a taxpayer’s entitlement to interest on a tax refund and the procedural path through which that entitlement is enforced. The Department contends that the First District created an inconsistency by allowing a mandamus action for interest to proceed after the underlying refund litigation, while simultaneously limiting the Department’s ability to contest that claim.

Framed this way, the issue appears to involve the interaction of ripeness, preclusion, and statutory entitlement—raising the possibility of broader doctrinal conflict.

The taxpayer’s response again narrows the case.

According to the taxpayer, the First District did not create any inconsistency. It simply recognized that the obligation to pay interest arises after the Department issues the refund but fails to include the required interest. At that point, a separate cause of action—mandamus—becomes available to compel payment of a statutory duty.

Under this view, the case is not about whether the interest claim should have been litigated earlier. It is about when the obligation to pay interest becomes enforceable and how that obligation can be compelled.

The dispute, in other words, is procedural and sequential—not doctrinal.

The taxpayer also emphasizes a practical point: the Department controls the process for determining whether a refund claim is complete and, by extension, whether interest is owed. If the Department processes a claim and issues a refund without raising deficiencies, it cannot later revisit those issues in a separate proceeding. Any resulting “problem” is therefore a function of how the Department administers its own processes.

That framing again limits the scope of the case. What the Department presents as a systemic issue becomes, from the taxpayer’s perspective, a manageable and largely self-inflicted procedural matter.

Two Cases, One Common Theme

When viewed together, ADN Global and SEI Fuel Services reveal a consistent dynamic.

In both cases, the Department frames the First District’s decisions as creating broad legal consequences—implicating jurisdictional doctrine, finality, sovereign immunity, and the administration of the tax system.

In both cases, the taxpayers respond by narrowing the focus:

• ADN Global is about notice and due process, not waiver of jurisdictional deadlines
• SEI Fuel Services is about the timing and enforcement of a statutory obligation, not conflicting doctrines of ripeness and preclusion

This narrowing is not merely rhetorical. It directly targets the requirement that conflict be clear and explicit. If the case can be understood as fact-specific or procedurally limited, the basis for discretionary review falls away.

The Florida Supreme Court’s denial of jurisdiction in ADN Global reflects that principle in action.

Is This a Trend?

It is tempting to characterize these cases as evidence of an emerging trend—an increasingly aggressive effort by the Department to seek Supreme Court review of adverse decisions.

That conclusion, however, should be approached with caution.

Agencies routinely pursue discretionary review in cases they believe have broader implications, particularly in areas like tax administration where uniformity is important. The Department’s concerns in both cases are not trivial, and its desire to obtain clarity at the highest level is understandable.

At the same time, these cases illustrate the limits of that strategy.

The Florida Supreme Court’s role is not to resolve every important issue, but to resolve conflicts in the law. Where a case turns on factual distinctions, procedural posture, or the application of settled principles to specific circumstances, the threshold for review is unlikely to be met—no matter how significant the underlying issue may be.

Conclusion

ADN Global and SEI Fuel Services offer a focused look at how discretionary review is being tested in Florida tax litigation.

The Department has advanced thoughtful and, at times, ambitious arguments in both cases, seeking to elevate adverse rulings into issues of statewide importance. The taxpayers, in turn, have responded by narrowing those rulings to their essential components—due process in one case, procedural timing in the other—and challenging the existence of any true conflict.

So far, that narrowing has been effective.

The denial of jurisdiction in ADN Global underscores the Florida Supreme Court’s continued adherence to a disciplined view of its role. The pending decision in SEI Fuel Services will provide further insight into whether more complex, multi-layered theories of conflict can gain traction.

For now, the takeaway is a measured one. The Department may be testing the boundaries of discretionary review, but those boundaries—particularly the requirement that conflict be clear, direct, and contained within the decision itself—remain firmly in place.